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District Court 27 June 2025

R v Kennedy

[2025] NSWDC 251

Assault & violenceTheft & propertyPublic order & justice offences
CRIME JUDGE ALONE HEARING CONSEQUENTIAL ORDERS MENTAL HEALTH CRIMINAL PROCEEDINGS — SPECIAL HEARING

Citation: R v Kennedy [2025] NSWDC 251
Court: District Court of New South Wales
Date: 27 June 2025
Judge: Anderson SC DCJ

Background

The accused faced two serious charges arising from events in Coonamble in the early hours of 11 January 2024: one count of aggravated break and enter under s 112(2) of the Crimes Act 1900 (NSW) and one count of specially aggravated break and enter under s 112(3). A third charge, relating to driving as an unaccompanied learner driver, was withdrawn by the Crown and formally dismissed. The accused entered pleas of not guilty on the basis that the acts were proven but that he was not criminally responsible.

The accused elected a judge-alone trial under s 132A of the Criminal Procedure Act 1986 (NSW). Both offences involved the accused entering the homes of family members in the middle of the night armed with knives. The physical facts were not in dispute; the central question was the accused's mental state at the time.

In the weeks before the offences, the accused had reportedly not been sleeping, had recently stopped using cannabis, and was observed by his housemate to be paranoid. On the night in question, he drove unaccompanied to his father's home, broke in through a bedroom window, picked up a knife, and declared his intent to kill his father while simultaneously expressing love for him. Shortly afterwards, he forced entry into his stepfather's home, made repeated apologies during the confrontation, and stabbed him in the chest before fleeing.

  • Whether the Crown proved beyond reasonable doubt that the accused committed the physical acts constituting each offence.
  • Whether the accused established, on the balance of probabilities, that at the time of the offences he had a mental health impairment or cognitive impairment within the meaning of s 4 and s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
  • Specifically, whether that impairment meant the accused did not know the nature and quality of his acts, or did not know that his acts were wrong (applying the test in R v Porter (1933) 55 CLR 182).
  • What consequential orders were appropriate following special verdicts of "act proven but not criminally responsible."

Decision

The physical elements of both charges were not in dispute, and the Court was satisfied beyond reasonable doubt that those elements were proven. The focus of the hearing therefore turned entirely on whether the defence of mental health or cognitive impairment had been established on the balance of probabilities.

The Court relied principally on psychiatric reports from Dr Sathish Dayalan (dated 25 October 2024) and Dr Matthew Jones (dated 31 December 2024), both prepared following assessments of the accused while in custody. Supporting material included observations from the accused's housemate, a letter from the Coonamble Aboriginal Health Service, a treatment recommendation from Dr Andrew White, and a Justice Health note. The accused's highly agitated presentation on the night, his verbalisations during the attacks (simultaneously expressing love and lethal intent toward his father, and repeated apologies to his stepfather), and the preceding fortnight of disturbed sleep and paranoia all informed the Court's assessment of his mental state at the time of the offences.

On the basis of that evidence, the Court was satisfied that the accused had a mental health or cognitive impairment at the time of the offences that met the statutory threshold under s 28 of the Act. Accordingly, the Court returned special verdicts of "act proven but not criminally responsible" on both counts. The Court then considered what order was appropriate under s 33 of the Act, noting that current medical evidence supported release into the community rather than detention. Anderson SC DCJ observed that had the accused remained in custody, he would have faced an approximately two-year wait before being seen at the Forensic Hospital, a circumstance the Court described as "fairly appalling." In light of the available medical evidence, the Court resolved all matters on the day and made an order for conditional release under s 33(c) of the Act, with referral to the Mental Health Review Tribunal under s 34.

Orders Made

  • Verdicts of "act proven but not criminally responsible" entered on counts 1 and 2 of the indictment (aggravated break and enter and specially aggravated break and enter).
  • The charge on the s 166 certificate (unaccompanied learner driver) formally dismissed following Crown withdrawal.
  • Conditional release order made under s 33(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), subject to the following conditions:
  • Obey all directions of the Mental Health Review Tribunal.
  • Attend all appointments with or organised by the Mental Health Review Tribunal.
  • Reside at a specified address (redacted) for the foreseeable future, subject to variation with the Tribunal's permission.
  • Not go near or contact Mr William Hopgood.
  • Accept any referral by Justice Health to the Coonamble Aboriginal Health Service for community treatment.
  • Accept all treatment as prescribed by a doctor, including prescribed medication.
  • Not consume alcohol or non-prescribed drugs.
  • Referral to the Mental Health Review Tribunal for ongoing assessment under s 34 of the Act.
  • Registrar directed to notify the Minister for Health and the Mental Health Review Tribunal as soon as practicable, and to provide the Tribunal with the Court's reasons, the psychiatric reports of Dr Jones, Dr Dayalan, and Dr White, the letter from the Coonamble Aboriginal Medical Service, and copies of Exhibit 1.

Key Takeaways

  • Under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the Crown must still prove the physical elements of a charge beyond reasonable doubt even where a mental health impairment defence is raised; only if those elements are established does the court turn to the impairment question.
  • The defence of mental health impairment under s 28 of the Act requires the accused to prove on the balance of probabilities that, due to a qualifying impairment, they either did not know the nature and quality of their act or could not reason about whether the act was wrong with a moderate degree of sense and composure (the R v Porter standard, which is expressly imported by the legislation).
  • A person is presumed to have been mentally well at the time of an alleged offence; displacing that presumption rests with the accused and is assessed on the balance of probabilities, not beyond reasonable doubt.
  • Where a special verdict of "act proven but not criminally responsible" is entered, the court has a range of available orders under s 33 of the Act, including conditional release; the choice among those orders is informed by current medical evidence about the person's condition and treatment needs.
  • The District Court noted, in making its orders, that the prospect of a two-year wait for Forensic Hospital assessment for a person held in custody was a significant practical consideration weighing in favour of resolving all matters at the hearing and making a conditional release order supported by community treatment arrangements.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 112(3)
- Criminal Procedure Act 1986 (NSW), ss 132A, 166
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28, 31, 33, 34
- Road Transport (Driver Licensing) Regulation 2017 (NSW), s 15(1)(a)

Cases:
- R v Porter (1933) 55 CLR 182 (High Court of Australia)
- R v Munday No 3 [2021] NSWDC 629